In Ashley Newbury v. City of Niagara Falls, No. 23-7976-cv, 2025 WL 323340 (2d Cir. 2025), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s summary judgment dismissal of plaintiff’s hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Superintendent DalPorto is the only City employee who had supervisory authority over Newbury, because he was the only City employee involved here with the power to effect a significant change in Newbury’s employment status. Vance, 570 U.S. at 431. Accordingly, the City will be strictly liable for DalPorto’s conduct if it amounts to “severe or pervasive” harassment that could “alter the conditions of [Newbury’s] employment and create an abusive working environment.” Duch, 588 F.3d at 762. DalPorto’s conduct in this case is limited to calling Newbury a “piece of shit,” App’x 382, and telling her that he would not “let someone stupid like [her] get one of his boys hurt on the streets,” id. at 205. We conclude in the context of the undisputed facts here that these two comments are insufficient to create a hostile work environment under Title VII.
A hostile work environment exists where “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). “Isolated incidents of harassment ordinarily do not rise to this level,” but “we have recognized that a single act can create a hostile work environment” if it was “extraordinarily severe.” Banks v. General Motors, LLC, 81 F.4th 242, 262 (2d Cir. 2023). “Harassing conduct need not be motivated by sexual desire” to establish a hostile work environment claim, “so long as [the conduct] was motivated by gender.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010) (emphasis omitted).
DalPorto’s comments were not so extraordinarily severe that they transformed Newbury’s workplace. DalPorto made comments during a single isolated outburst.4DalPorto’s conduct was not physically threatening. See Banks, 81 F.4th at 262-64. And DalPorto did not demean Newbury in front of fellow recruits or colleagues in a way that would have made it more difficult for Newbury to do her job. Cf. Howley v. Town of Stratford, 217 F.3d 141, 154–55 (2d Cir. 2000) (concluding a reasonable jury could find a single incident created a hostile work environment when the incident took place in front of colleagues).
The court thus concluded that “[e]ven in the light most favorable to Newbury, DalPorto’s two comments—without more—cannot be characterized as extraordinarily severe.”